with the rest of the tenants; and being possessed of all that information which either tradition or their own personal observations could furnish, proceeded to describe the several customs which regulated the descent of the different species of tenure within this manor. Now, can it be supposed that these persons, acting under the sanction of an oath, could, for no purpose whatever, give a false representation of these customs? or is it not more probable that their account was the true one? Common sense and common observation would induce us to believe the latter.

"The argument against the verdict seems to admit, that this document was a degree of evidence when it was produced to the jury; and, if it were admissible in evidence, it not being opposed by any other species of evidence, and the jury having given credit to it, it puts an end to the question. And that this was admissible cannot be doubted; for tradition and the received opinion are the evidence of the lex loci.

"A distinction indeed prevails between a prescription, as applied to a particular tenement, and a custom affecting the whole district; and the latter has gone so far, that the custom of one manor has been given in evidence to show the custom of another, where they are both governed by the border law. Now, here was full proof of a tradition respecting the custom of descent in this manor; it was the solemn opinion of twenty-four homagers, who are the constitutional judges of that court, delivered on an occasion when they were discussing the interests of all the tenants of the manor. I cannot distinguish this from the instance of a terrier, which is certainly evidence. The case of Godwin v. Spray is dis- ante. tinguishable from the present. Every thing, that was said by the Court in giving judgement, must be Ff

VOL. III.

understood secundum subjectam materiem. That case first decided that such an instrument as the

present is admissible; and then that part of it, which said that lands were not partible, either between males or females, in general terms, was to be explained by the custom, as it had existed in point of fact, which did not extend to nieces. And if that decision go farther, and determine that such a document is not admissible in evidence, unless instances in fact be previously proved to warrant the production of it, I must beg leave to dissent from it. In this case, supposing the defendant had demurred to this evidence, I think the Court must have drawn the same conclusion from it, which the jury have drawn; and therefore, on the law of the case, I think that the rule for a new trial should be discharged."

TITLE XXX.

ESCHEAT.

1. Of Title by Purchase.

6. Of Escheat.

32. Nor Money to be laid out in
Land.

11. Escheats for Default of 33. To whom Lands escheat.

Heirs.

12. From Corruption of Blood.

15. No Escheat where there is a

Tenant.

19. Any Alienation prevents an Escheat.

23. What Things escheat.

28. A Trust Estate does not

escheat.

35. The Lord by Escheat may
distrain for Rent.

36. Is entitled to a Term to at-
tend.

38. And to all Charters.
39. Is subject to Incumbrances.
41. Was not bound to execute a
Use.

42. Is not subject to a Trust.

31. Nor an Equity of Redemption. 46. Office of Escheator.

OF the two modes of acquiring a title to real pro- Of Title by

perty, the first, namely descent, has been explained in the preceding title. We now therefore come to the second, that is, purchase; which is thus defined by Littleton, § 12. " Purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh, not by title of descent from any of his ancestors or cousins, but by his own deed."

Purchase.

2. Lord Coke, in his comment on this section, 1 Inst. 18 b. observes, that a purchase is always intended by title, and most properly by some kind of conveyance, either for money, or for some other consideration, or freely of gift, for that is, in law, also a purchase : and accordingly the makers of the statute 1 Hen. V. Plowd. 47.

c. 3. speak of those who have lands or ténements by purchase, or descent of inheritance.

3. The feudal writers call purchase conquestus, or conquisitio; both denoting any means of acquiring an estate out of the common course of inheritance. The Grand Coust. Norman jurists styled the first purchaser, or person who first acquired the estate the conquereur. And Glanville uses the word questus, to denote the property which a person has acquired by his own act, and not by descent.

Lib. 7. c. 1.

4. The difference between the acquisition of an estate by descent, and by purchase, consists princiTit. 29. c. 3. pally in two points. 1st. That by purchase the estate § 31. acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity. 2d. An estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent will.

Of Escheat.

5. Sir W. Blackstone has enumerated the following modes of acquiring an estate by purchase; escheat, occupancy, prescription, forfeiture, and alienation. Of these I shall only treat of escheat, prescription, and alienation. Occupancy having been already noticed in Title III. and forfeiture being noticed under that and several other Titles.

6. It has been stated that by the feudal law, when Dissert. c. 1. the tenant died without heirs, the lord became enti$79. tled to the feud. This law, which was introduced here by the Normans, is founded on the principle that the blood of the person last seised in fee is by some means or other utterly extinct and gone and since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence that the inheritance itself must fail. The land must become what the feudal writers call feodum apertum,

2 Inst. 64. Wright's Ten. 115.

and result back to the lord of the fee ; from whom, or from whose ancestor, it was originally derived.

Id. 13 a.

7. This mode of acquiring an estate is called an 1 Inst. 92 b. escheat, which Lord Coke says is a word of art, derived from the French word eschier, quod est, accidere: for an escheat is a casual profit, quod accidit domino ex eventu et ex insperato, which happeneth to the lord by chance, and unlooked for.

8. An escheat it therefore in fact a species of reversion, and is so called and treated by Bracton. 23 a. When a power of alienation was introduced, the change of the tenant, changed the chance of the escheat, but did not destroy it; and as soon as a general liberty of alienation was allowed, without the consent of the lord, this right became a sort of caducary succession, the lord taking as ultimus hæres.

9. Fitzherbert says, a writ of escheat lies where a N. B. 143. tenant in fee simple of any lands or tenements which he holds of another dies seised without heir general or special; the lord shall have a writ of escheat against him who is tenant of the lands, after the death of his tenant, and shall recover the land; because he shall have the same in lieu of his services.

10. Mr. Hargrave has justly observed, that an 1 Inst. 186. escheat in appearance participates in the nature both ".2. of a purchase, and of a descent. Of the former, because some act of the lord is requisite to perfect his title; and the actual possession of the land cannot be gained till he enters or brings his writ of escheat. Of the latter, because it follows the nature of a seigniory, and is inheritable by the same person.

default of

11. An escheat may happen in two ways; aut per Escheats for defectum sanguinis, that is, for default of heirs; aut per Heirs. delictum tenentis. Escheats arising from default of heirs, 1 Inst. 13 a.